State ex rel. McLendon v. Morton

• Decision Date: 19 December 1978
• Docket Number: No. 14211,14211
• Citation: 249 S.E.2d 919,162 W.Va. 431
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Vonceil McLENDON v. Ben L. MORTON, Chancellor, West Virginia Board of Regents, et al.

Page 919

249 S.E.2d 919

162 W.Va. 431

STATE ex rel. Vonceil McLENDON v. Ben L. MORTON, Chancellor, West Virginia Board of Regents, et al.

No. 14211.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1978.

Syllabus by the Court

1. The West Virginia Board of Regents is authorized under W.Va.Code, 18-26-1, Et seq., to set standards for the hiring, tenure and dismissal of teachers at State colleges and universities.

2. "A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." Syllabus Point 3, Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1977).

3. A teacher who has satisfied the objective eligibility standards for tenure adopted by a State college has a sufficient entitlement so that he cannot be denied tenure on the issue of his competency without some procedural due process.

4. "The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Syllabus Point 5, Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1977).

5. Minimal procedural due process for a teacher who has met the eligibility standards for tenure and has been denied the same, necessitates a notice of the reasons why tenure is not extended and a hearing with an opportunity to submit evidence relevant to the issues raised in the notice. The hearing tribunal should be unbiased. If the teacher demonstrates that the reasons are wholly inadequate or without a factual basis, the administration would be required to show the contrary.

M. E. Mowery, Parkersburg, for relator.

Chauncey H. Browning, Atty. Gen., F. Layton Cottrill and Gregory W. Bailey, Asst. Attys. Gen., Charleston, for respondents.

MILLER, Justice:

Relator, Vonceil McLendon, an Assistant Professor at Parkersburg Community College, seeks this original writ of mandamus against the West Virginia Board of Regents and Ben L. Morton, its Chancellor. Her claim is based on the fact that she was denied a due process hearing in connection with the College's decision not to grant her tenure. We agree and issue the writ.

Relator bases her right to a due process hearing on the ground that the Board of Regents' tenure standards set out in its Amended Policy Bulletin No. 36 establish certain objective criteria which, if met, bestow a property interest sufficient to require that she be afforded a procedural due process hearing before tenure can be denied. The respondents, the Board of Regents and the Chancellor, deny that their tenure policy confers any property interest.

Tenure for teachers in State-supported colleges and universities is controlled by Amended Policy Bulletin No. 36 (herein Bulletin), effective July 1, 1974, entitled "Policy Regarding Academic Freedom and Responsibility, Appointment, Promotion, Tenure and Termination of Employment of Professional Personnel."

The authority of the Board of Regents to adopt the Bulletin is not questioned in this case. Notwithstanding any implication that may be found in State ex rel. Kondos v. West Virginia Board of Regents, 154 W.Va. 276, 175 S.E.2d 165 (1970), the broad language contained in W.Va.Code, 18-26-8, placing ". . . the general determination, control, supervision and management of the financial, business and educational policies and affairs of all state colleges and universities . . .", together with similar language found in W.Va.Code, 18-26-13b, relating to community colleges, compels the conclusion that the Board of Regents is authorized to set standards for the hiring, tenure and dismissal of teachers at State colleges and universities. This power was explicitly recognized in Sheppard v. West Virginia Board of Regents, 516 F.2d 826 (4th Cir. 1975). ¹

Section 8A of the Bulletin makes clear that tenure is intended to ensure academic freedom by protecting faculty members against capricious dismissal. ² Tenure is not granted automatically, "but shall result from action by the West Virginia Board of Regents upon the recommendation of the president following consultation with the department concerned." ³ Obviously, and as is the case here, tenure is considered first by the college. Parkersburg Community College implemented the Board's tenure policy by its own Policy Regulation No. 4P-36-03, which provides that "applications and/or nominations for tenure shall be filed with the chairman of the College Wide Tenure Committee." The regulations also provide for an evaluation process. ⁴

Of considerable significance is Section 8C of the Bulletin, which makes tenure available to all full-time employees who hold the rank of Assistant Professor or above. ⁵ Equally significant is Section 9C of the Bulletin, which sets forth the maximum time periods within which the tenure decision must be made by the institution: "The maximum period of probation shall not exceed seven years; and at the end of six years any non-tenured faculty member will be given notice in writing of tenure, or offered a one-year written terminal contract of employment. . . ." ⁶

These are the relevant provisions in regard to eligibility for tenure. It is clear from Section 11 of the Bulletin that once tenure is obtained, a faculty member cannot be dismissed except for six specified reasons, and is entitled to formal hearing procedures with the right to appeal to the Board of Regents. These procedural rights do not apply to a non-tenured teacher unless he is dismissed during the term of his annual contract. ⁷

I THE NATURE OF THE INTEREST

Both parties agree that the question of whether Professor McLendon is entitled to any procedural due process upon rejection of her application for tenure must be answered by determining whether she has some protected interest created by Amended Policy Bulletin No. 36.

We are cited Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and our own cases of Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1977), and North v. West Virginia Board of Regents, W.Va., 233 S.E.2d 411 (1977), as establishing the guidelines for determining a protected interest.

Each of these cases announces the rule that a protected interest, in the sense that its withdrawal requires some procedural due process protection, can be either a liberty or property interest. Admittedly, no claim of a liberty interest is at stake in this case, as Professor McLendon does not assert that the denial of her tenure arose out of her exercise of some constitutionally protected right, such as freedom of speech, or that the denial was based upon some charge which involved her reputation, honor or integrity.

The issue thus narrows to whether she had some property interest by virtue of the Bulletin and the regulations surrounding tenure. We acknowledged in Waite that Roth formulated a property interest broader than the traditional concept of real and personal property:

"It is clear from the Supreme Court decision in Roth, supra, that the Constitution protects property interests beyond the traditional concept of real or personal property. The Court indicated that a benefit which merits protection as a property interest must be one to which there is more than a 'unilateral expectation.' 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561. Rather, there must exist rules or understandings which allow the claimant's expectations to be characterized as 'a legitimate claim of entitlement to (the benefit.)' Ibid." (241 S.E.2d at 168)

We also recognized in Waite that our analysis of liberty and property interests was hinged to our constitutional due process standard, West Virginia Constitution, Article III, Section 10. Consequently, while we may utilize the teachings of the United States Supreme Court in its due process cases, we are not constrained by identicality so long as we do not diminish our State standard below the federal standard. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

We find no United States Supreme Court case involving tenure which is precisely in point with the present case. Roth involved an assistant professor who had been hired at Wisconsin State University on a one-year contract which was not renewed at the end of the year. Wisconsin had a statute which gave tenure after four years of continuous service. The Court found Roth not to have any property interest since he had not met the tenure standard.

In Perry, the professor had been employed for four years at Odessa Junior College and had two years' previous college teaching experience. He claimed that the college had a De facto tenure program under which he qualified. The Court agreed this would be a sufficient property interest to require a procedural due process hearing for determination of reasons for his non-retention. The case was remanded to permit the professor to prove the facts surrounding his eligibility under the De facto tenure system, in order to establish his property interest.

A precise line cannot be drawn around the concepts of property and liberty interest since these terms expand with society's enlightened values. Within the term "property interest," courts have had less difficulty in requiring procedural due process protection where existing rights are terminated or diminished by governmental action. See, e. g., Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29...